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  • Last time we began trying to we began by trying to navigate

  • our way through Kant’s moral theory.

  • Now, fully to make sense of Kant moral theory in the groundwork

  • requires that we be able to answer three questions.

  • How can duty and autonomy go together?

  • What’s the great dignity in answering to duty?

  • It would seem that these two ideas are opposed duty and autonomy.

  • What’s Kant’s answer to that?

  • Need someone here to speak up on Kant’s behalf.

  • Does he have an answer?

  • Yes, go ahead, stand up.

  • Kant believes you the only act autonomously when you are pursuing

  • something only the name of duty and not because of your own circumstances

  • such aslike youre only doing something good and moral

  • if youre doing it because of duty and not because something

  • of your own personal gain.

  • Now why is that actingwhat’s your name?

  • My name is Matt.

  • Matt, why is that acting on a freedom? I hear what youre saying about duty?

  • Because you choose to accept those moral laws in yourself

  • and not brought on from outside upon onto you.

  • Okay, good. Because acting out of duty

  • Yeah. - is following a moral law

  • That you impose on yourself.

  • That you impose on yourself. That’s what makes duty

  • compatible with freedom. - Yeah.

  • Okay, that’s good Matt. That is Kant’s answer. That’s great.

  • Thank you. So, Kant’s answer is it is not in so far as I am subject

  • to the law that I have dignity but rather in so far as with regard

  • to that very same law, I’m the author and I am subordinated

  • to that law on that ground that I took it as much as at I took it upon myself.

  • I willed that law. So that’s why for Kant acting according

  • to duty and acting freely in the sense of autonomously are one and the same.

  • But that raises the question, how many moral laws are there?

  • Because if dignity consists and be governed by a law that I give myself,

  • what’s to guarantee that my conscience will be

  • the same as your conscience? Who has Kant’s answer to that? Yes?

  • Because a moral law trend is not contingent upon seductive conditions.

  • It would transcend all particular differences between people

  • and so would be a universal law and in this respect there’d only be

  • one moral law because it would be supreme.

  • Right. That’s exactly right. What’s your name?

  • Kelly.

  • Kelly. So Kelly, Kant believes that if we choose freely

  • out of our own consciences, the moral law we're guarantee

  • to come up with one and the same moral law. -Yes.

  • And that’s because when I choose it's not me, Michael Sandel choosing.

  • It’s not you, Kelly choosing for yourself?

  • What is it exactly? Who is doing the choosing?

  • Who’s the subject? Who is the agent? Who is doing the choosing?

  • Reason? - Well reasonPure reason.

  • Pure reason and what you mean by pure reason is what exactly?

  • Well pure reason is like we were saying before not subject to any

  • external conditions that may be imposed on that side.

  • Good that’s’ great. So, the reason that does the willing,

  • the reason that governs my will when I will the moral law

  • is the same reason that operates when you choose the moral law

  • for yourself and that’s why it’s possible to act autonomously

  • to choose for myself, for each of us to choose for ourselves

  • as autonomous beings and for all of us to wind up willing the same moral law,

  • the categorical imperative.

  • But then there is one big and very difficult question left even

  • if you accept everything that Matt and Kelly had said so far.

  • How is a categorical imperative possible?

  • How is morality possible? To answer that question,

  • Kant said we need to make a distinction.

  • We need to make a distinction between two standpoints,

  • two standpoints from which we can make sense of our experience.

  • Let me try to explain what he means by these two standpoints.

  • As an object of experience, I belong to the sensible world.

  • There my actions are determined by the laws of nature

  • and by the regularities of cause and effect.

  • But as a subject of experience, I inhabit an intelligible world here

  • being independent of the laws of nature I am capable of autonomy,

  • capable of acting according to a law I give myself.

  • Now Kant says that, "Only from this second standpoint can I regard myself

  • as free for to be independent of determination by causes

  • in the sensible world is to be free."

  • If I were holy and empirical being as the utilitarian assume,

  • if I were a being holy and only subject to the deliverances of my senses,

  • to pain and pleasure and hunger and thirst and appetite,

  • if that’s all there were to humanity, we wouldn’t be capable of freedom,

  • Kant reasons because in that case every exercise of will would be

  • conditioned by the desire for some object.

  • In that case all choice would be heteronymous choice governed

  • by the pursued of some external end. "When we think of ourselves as free,"

  • Kant writes, "we transfer ourselves into the intelligible world as members

  • and recognize the autonomy of the will." That’s the idea of the two standpoints.

  • So how are categorical imperatives possible? Only because the idea

  • of freedom makes me a member of an intelligible world?

  • Now Kant admits we aren’t only rational beings.

  • We don’t only inhabit the intelligible world, the realm of freedom.

  • If we did -- if we did, then all of our actions

  • would invariably accord with the autonomy of the will.

  • But precisely because we inhabit simultaneously the two standpoints,

  • the two realms, the realm of freedom and the realm of necessity

  • precisely because we inhabit both realms there is always potentially a gap

  • between what we do and what we ought to do between is and ought.

  • Another way of putting this point and this is the point with which

  • Kant concludes the groundwork, morality is not empirical.

  • Whatever you see in the world, whatever you discover through science

  • can’t decide moral questions.

  • Morality stands at a certain distance from the world,

  • from the empirical world.

  • And that’s why no science could deliver moral truth.

  • Now I want to test Kant’s moral theory with the hardest possible case,

  • a case that he raises, the case of the murderer at the door.

  • Kant says that lying is wrong. We all know that.

  • Weve discussed why. Lying is at odds with the categorical imperative.

  • A French Philosopher, Benjamin Constant wrote an article responding

  • to the groundwork where he said, “This absolute probation online

  • What if a murderer came to your door looking for your friend

  • who was hiding in your house?

  • And the murderer asked you point blank, "Is your friend in your house?"

  • Constant says, “It would be crazy to say that the moral thing to do

  • in that case is to tell the truth.”

  • Constant says the murderer certainly doesn’t deserve the truth

  • and Kant wrote to reply.

  • And Kant stuck by his principle that lying even to the murderer

  • at the door is wrong.

  • And the reason it’s wrong, he said is once you start taking

  • consequences into account to carve out exceptions to the categorical

  • imperative, youve given up the whole moral framework.

  • Youve become a consequentialist or maybe a rule utilitarian.

  • But most of you and most to our Kant’s readers think there’s something odd

  • and impossible about this answer.

  • I would like to try to defend Kant on this point

  • and then I want to see whether you think that my defense is plausible,

  • and I would want to defend him within the spirit of his own account of morality.

  • Imagine that someone comes to your door.

  • You were asked that question by this murder.

  • You are hiding your friend.

  • Is there a way that you could avoid telling a lie

  • without selling out your friend?

  • Does anyone have an idea of how you might be able to do that?

  • Yes? Stand up.

  • I was just going to say if I were to let my friend in my house

  • to hide in the first place, I’d probably make a plan with them

  • so I’d be like, "Hey I’ll tell the murderer youre here,

  • but escape," and that’s one of the options mentioned.

  • But I’m not sure that’s a Kantian option. Youre still lying though.

  • No because he’s in the house but he won’t be.

  • Oh I see. All right, good enough. One more try.

  • If you just say you don’t know where he is because he might not

  • be locked in the closet.

  • He might have left the closet. You have no clue where he could be.

  • So you would say, I don’t know which wouldn’t actually be a lie

  • because you weren’t at that very moment looking in the closet.

  • Exactly. -So it would be strictly speaking true.

  • Yes.

  • And yet possibly deceiving, misleading. -But still true.

  • What’s your name? -John.

  • John. All right, John has... now John may be on to something.

  • John youre really offering us the option of a clever evasion

  • that is strictly speaking true.

  • This raises the question whether there is a moral difference between

  • an outright lie and a misleading truth.

  • From Kant’s point of view there actually is a world of difference between a lie

  • and a misleading truth.

  • Why is that even though both might have the same consequences?

  • But then remember Kant doesn’t base morality on consequences.

  • He bases it on formal adherence to the moral law.

  • Now, sometimes in ordinary life we make exceptions for the general rule against

  • lying with the white lie. What is a white lie?

  • It’s a lie to make...youre well to avoid hurting someone’s feelings for example.

  • It’s a lie that we think of as justified by the consequences.

  • Now Kant could not endorse a white lie but perhaps he could endorse

  • a misleading truth.

  • Supposed someone gives you a tie, as a gift, and you open the box

  • and it’s just awful. What do you say? Thank you.

  • You could say thank you.

  • But theyre waiting to see what you think of it or they ask you

  • what do you think of it?

  • You could tell a white lie and say it’s beautiful.

  • But that wouldn’t be permissible from Kant’s point of view.

  • Could you say not a white lie but a misleading truth,

  • you open the box and you say, “I’ve never seen a tie like that before.

  • Thank you." You shouldn’t have.

  • That’s good.

  • Can you think of a contemporary political leader who engaged...you can?

  • Who are you thinking of?

  • You remember the whole carefully worded denials in the

  • Monica Lewinsky affair of Bill Clinton.

  • Now, those denials actually became the subject of very explicit debate

  • in argument during the impeachment hearings.

  • Take a look at the following excerpts from Bill Clinton.

  • Is there something do you think morally at stake in the distinction between a lie

  • and a misleading carefully couched truth?

  • I want to say one thing to the American people.

  • I want you to listen to me. I’m going to say this again.

  • I did not have sexual relations with that woman Miss Lewinsky.

  • I never told anybody to lie not a single time, never. These allegations are false.

  • Did he lie to the American people when he said I never had sex with that woman?

  • You know, he doesn’t believe he did and because of the

  • Well he didn’t explain it.

  • He did explain that, explain congressman.

  • What he said was to the American people that he did not have sexual relations

  • and I understand youre not going to l ike this congressman

  • because you will see it as a hair-splitting evasive answer.

  • But in his own mind his definition was not...

  • Okay, I understand that argument. -Okay.

  • All right, so there you have the exchange.

  • Now at the time, you may have thought this was just a

  • legalistic hair-splitting exchange between a Republican who wanted to

  • impeach Clinton and a lawyer who is trying to defend him.

  • But now in the light of Kant, do you think there is something

  • morally at stake in the distinction between a lie and an evasion,

  • a true but misleading statement? I’d like to hear from defenders of Kant.

  • People who think there is a distinction. Are you ready to defend Kant?

  • Well I think when you try to say that lying and misleading truths are the same thing;

  • youre basing it on consequentialist argument which is that they achieve the same thing.

  • But the fact to the fact to the matter is you told the truth

  • and you intended that people would believe what you are saying

  • which was the truth which means it is not morally the same

  • as telling a lie and intending that they believe it is the truth

  • even though it is not true.

  • Good. What’s your name? -Diana.

  • So Diana says that Kant has a point here and it’s a point that might even come

  • to the aid of Bill Clinton and that iswell what about that?

  • There’s someone over here.

  • For Kant motivation is key, so if you give to someone

  • because primarily you want to feel good about yourself

  • Kant would say that has no moral worth. Well with this, the motivation is the same.

  • It’s to sort of mislead someone, it's to lie, it's to sort of throw them

  • off the track and the motivation is the same. So there should be no difference.

  • Okay, good. So here isn’t the motive the same Diana?

  • What do you say to this argument that well the motive is the same in both cases

  • there is the attempt or at least the hope that one’s pursuer will be misled?

  • Well thatyou could look it that way but I think that the fact is

  • that your immediate motive is that they should believe you.

  • The ultimate consequence of that is t hat they might be deceived

  • and not find out what was going on.

  • But that your immediate motive is that they should believe you

  • because youre telling the truth.

  • May I help a little? -Sure.

  • You and Kant. Why don’t you say... and what’s your name, I’m sorry?

  • Wesley.

  • Why don’t you say to Wesley it’s not exactly the case

  • that the motive in both cases is to mislead?

  • Theyre hoping, theyre hoping that the person will be misled

  • by the statement "I don’t know where they are" or "I never had sexual relations."

  • Youre hoping that they will be misled but in the case

  • where youre telling the truth, youre motive is to mislead

  • while at the same time telling the truth and honoring the moral law

  • and staying within the bounds of the categorical imperative.

  • I think Kant’s answer would be Diana, yes? -Yes.

  • You like that? -I do.

  • Okay. So I think Kant’s answer would be unlike a falsehood,

  • unlike a lie, a misleading truth pays a certain homage to duty.

  • And the homage it pays to duty is what justifies that the work of

  • even the work of the evasion. Diana, yes you like? Okay.

  • And so there is something, some element of respect for the dignity

  • of the moral law in the careful evasion because Clinton could have told an

  • outright lie but he didn’t.

  • And so I think Kant’s insight here is in the carefully couched but true evasion.

  • There is a kind of homage to the dignity of the moral law that is not present

  • in the outright lie and that, Wesley, is part of the motive.

  • It’s part of the motive. Yes, I hope he will be misled.

  • I hope the murderer will run down the road or go to the mall looking

  • for my friend instead at the closet. I hope that will be the effect.

  • I can’t control that. I can’t control the consequences.

  • But what I can control is standing by and honoring however I pursue the ends,

  • I hope will unfold to do so in a way that is consistent with respect for the moral law.

  • Wesley, I don’t think, is entirely persuaded but at least this brings out,

  • this discussion brings out some of what it’s at stake,

  • what’s morally at stake in Kant’s notion of the categorical imperative.

  • As long as any effort this involved I would say that the contract is valid then.

  • It should take effect.

  • But why? What was... what morally can you point to?

  • For example two people agreed to be married and one suddenly

  • called the other in two minutes say I changed my mind.

  • Does the contract have obligation on both sides?

  • Well I am tempted to say no.

  • Fine.

  • Last time we talked about Kant’s categorical imperative

  • and we considered the way he applied the idea of the categorical imperative

  • to the case of lying.

  • I want to turn briefly to one other applicati of Kant’s moral theory

  • and that's his political theory.

  • Now Kant says that just laws arise from a certain kind of social contract.

  • But this contract he tells us is of an exceptional nature.

  • What makes the contract exceptional is that it is not an actual contract

  • that happens when people come together and try to figure out

  • what the constitution should be.

  • Kant points out that the contract that generates justice

  • is what he calls an idea of reason.

  • It’s not an actual contract among actual men and women gathered

  • in a constitutional convention. Why not?

  • I think Kant’s reason is that actual men and women gathered in real

  • constitutional convention would have different interests, values, aims,

  • and it would also be differences of bargaining power

  • and differences of knowledge among them.

  • And so the laws that would result from their deliberations wouldn’t necessarily

  • be just, wouldn’t necessarily conform to principles of right

  • but would simply reflect the differences a bargaining power,

  • the special interests the fact that some might know more than others

  • about law or about politics.

  • So Kant says, "A contract that generates principles of right is merely an idea

  • of reason but it has undoubted practical reality because it can oblige

  • every legislator to frame his laws in such a way that they could have been

  • produced by the united will of the whole nation."

  • So Kant is a contractarian, but he doesn’t trace the origin

  • or the rightness of law to any actual social contract.

  • This contrives to an obvious question.

  • What is the moral force of a hypothetical contract,

  • a contract that never happened?

  • That’s the question we take up today but in order to investigate it,

  • we need to turn to a modern philosopher, John Rawls, who worked out in his book,

  • A Theory of Justice, in great detail and account of a hypothetical agreement

  • as the basis for justice.

  • Rawlstheory of justice in broad outline is parallel to Kant’s

  • in two important respects.

  • Like Kant, Rawls was a critic of utilitarianism.

  • "Each person possesses an inviolability founded on justice,"

  • Rawlswrites, “that even the welfare of society as a whole cannot override.

  • The rights secured by justice are not subject to political bargaining

  • or to the calculus social interests.”

  • The second respect in which Rawlstheory follows Kant’s is on the idea that

  • principles of justice properly understood can be derived from a hypothetical

  • social contract. Not an actual one.

  • And Rawls works this out in fascinating detail with the device

  • of what he calls the "veil of ignorance".

  • The way to arrive at the rights... the basic rights that we must respect,

  • the basic framework of rights and duties is to imagine that we were

  • gathered together trying to choose the principles to govern our collective lives

  • without knowing certain important particular fact about ourselves.

  • That’s the idea of the veil of ignorance.

  • Now what would happen if we gather together just as we are here

  • and try to come up with principles of justice to govern our collective life?

  • There would be a cacophony of proposals of suggestions reflecting people’s

  • different interests, some are strong, some are weak,

  • some are rich, some are poor.

  • So Rawls says, imagine instead that we are gathered in an original position

  • of equality and what assures the equality is the veil of ignorance.

  • Imagine that we are all behind a veil of ignorance which temporarily abstracts

  • from or brackets, hides from us who in particular we are.

  • Our race, our class, our place in society, our strengths, our weaknesses,

  • whether were healthy or unhealthy, then and only then Rawls says,

  • the principles we would agree to would be principles of justice.

  • That’s how the hypothetical contract works.

  • What is the moral force of this kind of hypothetical agreement?

  • Is it stronger or weaker than a real agreement, an actual social contract?

  • In order to answer that question, we have to look hard at the moral force

  • of actual contracts. There are really two questions here.

  • One of them is how do actual contracts bind me or obligate me?

  • Question number one.

  • And question number two, how do actual real life contracts

  • justify the terms that they produce?

  • If you think about it and this is in line with Rawls and Kant,

  • the answer to the second question, how do actual contracts justify

  • the terms that they produce, the answer is they don’t.

  • At least not on their own.

  • Actual contracts are not self-sufficient moral instruments

  • of any actual contract or agreement.

  • It can always be asked, is it fair what they agreed to?

  • The fact of the agreement never guarantees the fairness of the agreement

  • and we know this by looking at our own constitutional convention.

  • It produced a constitution that permitted slavery to persist.

  • It was agreed to. It was an actual contract

  • but that doesn’t establish that the laws agreed to all of them were just.

  • Well then what is the moral force of actual contracts?

  • To the extent that they bind us, they obligate in two ways.

  • Suppose, maybe here it would help to take an example.

  • We make an agreement, a commercial agreement.

  • I promise to pay you $100 if you will go harvest

  • and bring to me 100 lobsters. We make a deal.

  • You go out and harvest them and bring them to me.

  • I eat the lobsters, served them to my friends, and then I don’t pay.

  • And you say, “But youre obligated.”

  • And I say, “Why?” What do you say? “Well we had a deal.”

  • And you benefited. You ate all those lobsters.

  • Well that’s a pretty strong argument.

  • It’s an argument that depends though and the fact that I benefited from your labo

  • So, contracts sometimes bind us in so far as they are instruments of mutual benefit.

  • I ate the lobsters. I owe you the $100 for having gathered them.

  • But suppose, now take a second case. We make this deal,

  • I’ll pay you $100 for 100 lobsters and two minutes later,

  • before youve gone to any work I call you back and say

  • I’ve changed my mind. Now, there’s no benefit.

  • There’s no work on your part so there’s no element of reciprocal exchange.

  • What about in that case, do I still owe you merely in virtue

  • of the fact that we had an agreement?

  • Who says those of you who say, yes, I still owe you? Why? Okay, stand up.

  • Why do I owe you? I called you back after two minutes.

  • You haven’t done any work.

  • I think I spent the time and effort in drafting this contract with you

  • and also have emotional expectation that I go through the work.

  • So you took time to draft the contract but we did it very quickly.

  • We just chatted on the phone.

  • That wouldn’t be a formal form of contract though.

  • Well I faxed at you. It only took a minute.

  • As long as any effort is involved, I would say that the contract is valid then.

  • It should take effect.

  • But why? What was...what morally can you point to that obligates me?

  • I admit that I agreed but you didn’t go to any work. I didn’t enjoy any benefit.

  • Because one might mentally go through all the work of harvesting the lobsters.

  • You mentally went through the work of harvesting the lobsters.

  • That’s nothing is it? It’s not much.

  • Is it worth $100 that you were imagining yourself going and collecting lobsters?

  • It may not worth $100, but it may worth something to some people.

  • All right, I’ll give you a buck for that. But what I – so youre still pointing...

  • what’s interesting youre still pointing to the reciprocal dimension of contracts.

  • You did or imagined that you did or looked forward to doing something that might be had.

  • For example two people agreed to be married and one suddenly calls the other

  • in two minutes say, I’ve changed my mind,

  • does the contract have obligation on both sides?

  • Nobody has done any work or nobody has benefited yet.

  • Well I'm tempted to say no.

  • Fine.

  • All, right. What’s your name? -Julian.

  • Thank you Julian. All right, that was good.

  • Now is there anyone who has who agrees with Julian that I still owe the money?

  • For any other reason now I havego ahead, stand up.

  • I think if you back out it sort of cheapens the institution of contracts.

  • Good but why? Why does it?

  • Well I think is kind of Kantian, but there’s in almost there’s a certain intrinsic value

  • in being able to make contracts and having, you know, knowing

  • people will expect that you'll go through with that.

  • Good, there is some... it would cheapen the whole idea

  • of contracts which has to do with taking in obligation on myself. Is that the idea?

  • Yeah, I think so.

  • What’s your name? -Adam.

  • So Adam points instead not to any reciprocal benefit or mutual exchange

  • but to the mere fact of the agreement itself.

  • We see here there are really two different ways in which

  • actual contracts generate obligations.

  • One has to do with the active consent as a voluntary act and it points...

  • Adam said this was a Kantian idea and I think he is right

  • because it points to the ideal of autonomy.

  • When I make a contract, the obligation is one that is self-imposed

  • and that carries a certain moral weight, independent of other considerations.

  • And then there’s a second element of the moral force of contract arguments

  • which has to do with the sense in which actual contracts are instruments

  • of mutual benefit and this points toward the ideal of reciprocity

  • that obligation can arise, I can have an obligation to you in so far

  • as you do something for me.

  • Now, when investigating the moral force and also the moral limits of actual contracts

  • and here I would like to advance an argument about the moral limits

  • of actual contracts now that we know what moral ingredients do the work

  • when people come together and say, “I will do this if you do that.”

  • I would like to argue first that the fact that two people agreed

  • to some exchange does not mean that the terms of their agreement are fair.

  • When my two sons were young they collected baseball cards and traded them.

  • And one was...there was a two-year aged... there is a two-year aged difference

  • between them and so I had to institute a rule about the trades that no trade was complete

  • until I had approved it and the reason is obvious.

  • The older one knew more about the value of these cards

  • and so would take advantage of the younger one.

  • So that’s why I had to review it to make sure that the agreements were fair.

  • Now you may say, “Well this is paternalism.”

  • Of course it was. That’s what paternalism is for that kind of thing.

  • So what does this show?

  • What is the baseball cards example show?

  • The fact of an agreement is not sufficient to establish the fairness of the terms.

  • I read some years ago of a case in Chicago there was an elderly widow,

  • an 84-year-old widow named Rose who had a problem in her apartment

  • with a leaky toilet and she signed a contract with an unscrupulous contractor,

  • who offered to repair her leaky toilet in exchange for $50,000.

  • But she had agreed she was of sound mind,

  • maybe terribly na?ve and unfamiliar with the price of plumbing,

  • she had made this agreement.

  • Luckily, it was discovered.

  • She went to the bank and asked to withdraw $25,000.

  • And the teller said, “Why do you need all of that money for?”

  • And she said, “Well, I have a leaky toilet.”

  • And the teller called authorities and they discovered this unscrupulous contractor.

  • Now, I suspect that even the most ardent contract carryings in the room will agree

  • that the fact of this woman’s agreement is not a sufficient condition

  • of the agreement being fair.

  • Is there anyone who will dispute that? No one. Am I missing anyone?

  • Alex, where are you?

  • Where are you?

  • So, maybe there’s no dispute then to my first claim that an actual agreement

  • is not necessary to their.. is not a sufficient condition

  • of there being an obligation.

  • I want to now make us stronger, maybe more controversial claim about

  • the moral limits of actual contracts that a contract or an active consent is

  • not only not sufficient but it’s not even a necessary condition

  • of there being an obligation.

  • And the idea here is that if there is reciprocity,

  • if there is an exchange, then a receipt of benefits,

  • there can be an obligation even without an act of consent.

  • One great example of this involves the 18th century philosopher,

  • the Scottish moral philosopher David Hume.

  • When he was young, Hume wrote a book arguing against

  • Locke’s idea of an original social contract.

  • Hume heaps scorn on his contractarian idea.

  • He said it was a philosophical fiction.

  • One of the most mysterious and incomprehensible operations

  • that can possibly be imagined this idea of the social contract.

  • Many years later when he was 62 years old, Hume had an experience

  • that put to the test his rejection of consent us the basis of obligation.

  • Hume had a house in Edinboro.

  • He rented to his friend James Boswell who in turn sublet it to a subtenant.

  • The subtenant decided that the house needed some repairs and a paint job.

  • He hired a contractor to do the work.

  • The painter did the work and sent the bill to Hume.

  • Hume refused to pay on the grounds that he hadn’t consented.

  • He hadn’t hired the painter. The case went to court.

  • The contractor said, “It’s true, Hume didn’t agree

  • but the house needed the painting and I gave it a very good one.”

  • Hume thought this was a bad argument.

  • The only argument this painter makes is that the work was necessary to be done

  • but this is no good answer because by the same rule,

  • this painter may go through every house in Edinboro and do what he thinks proper

  • to be done without the landlord’s consent and give the same reason

  • that the work was necessary and that the house was the better for it.

  • So Hume didn’t like the theory that there could be obligation to repay a benefit

  • without consent. But the defense failed and he had to pay.

  • Let met give you one other example of the distinction

  • between the consent-based aspect of obligations and the benefit-based aspect

  • and how theyre sometimes run together.

  • This is based on a personal experience.

  • Some years ago, I was driving across the country

  • with some friends and we found ourselves in the middle of nowhere

  • in Hammond, Indiana.

  • We stopped in a rest stop and got out of the car

  • and when we came back our car wouldn’t start.

  • None of us knew much about cars.

  • We didn’t really know what to do until we noticed that in the parking lot

  • driving up next to us was a van and on the side it said,

  • Sam’s mobile repair van.” And out of the van came a man,

  • presumably Sam and he came up to us and he said, “Can I help you?

  • Here’s how I work. I work by the hour for $50 an hour.

  • If I fix your car in five minutes, you owe me the $50

  • and if I work on your car for an hour and can’t fix it,

  • youll still owe me the $50.”

  • So I said, “But what is the likelihood that youll be able to fix the car

  • and he didn’t answer.

  • But he did start looking under the poking around the steering column.

  • Short time passed, he emerged from under the steering column and said,

  • There’s nothing wrong with the ignition system

  • but you still have 45 minutes left. Should I look under the hood?”

  • I said, “Wait a minute. I haven’t hired you. We haven’t made any agreement.”

  • And then he became very angry and he said, “Do you mean to say that

  • if I had fixed your car while I was working under the steering column

  • that you wouldn’t have paid me?” And I said, “That’s a different question.”

  • I didn’t go into the distinction between consent based and benefit based applications.

  • But I think he had the intuition that if he had fixed it

  • while he was poking around that I would have owed him the $50.

  • I shared that intuition. I would have. But he inferred from that.

  • This was the fallacy and the reasoning that I think lay behind his anger.

  • He inferred from that fact that therefore implicitly we had an agreement.

  • But that it seems to me as a mistake.

  • It’s a mistake that fails to recognize the distinction between

  • these two different aspects of contract arguments.

  • Yes, I agree. I would have owed him $50 if he had repaired my car during that time

  • not because we had made any agreement. We hadn’t.

  • But simply because if he had fixed my car, he would have conferred on me a benefit

  • for which I would have owed him in the name of reciprocity and fairness.

  • So here’s another example of the distinction between these two different

  • kinds of arguments, these two different aspects of the morality of contract.

  • Now I want to hear how many think I was in the right in that case?

  • That’s reassuring. Is there anyone who thinks I was in the wrong?

  • Anyone? You do? Why? Go ahead.

  • Isn’t the problem with this is that any benefit is inherently subjectively defined?

  • I mean what if you wanted your car broken and he had fixed it? I mean...

  • No, I didn’t want it broken.

  • Yeah in this case. I mean...

  • But who would? Who would?

  • I don’t know, someone.

  • I mean what if Hume, you know, what if the painter

  • that painted his house blue but he hated the color blue,

  • I mean you have to sort of define what your benefit is before the person does it.

  • Well all right, so what would you conclude for that though

  • for the larger issue here, would you conclude that

  • therefore consent is a necessary condition of their being an obligation?

  • Absolutely. -You would. What’s your name?

  • Nate.

  • Because otherwise how can we know, Nate says, whether there has been

  • an exchange of equivalent or fair benefits unless we have the subjective evaluation

  • which may vary one person to the next of the situation.

  • All right, that’s a fair challenge.

  • Let me put to you one other example in order to test the relation between

  • these two aspects of the morality of contract.

  • Suppose I get married and suppose I discover that after 20 years

  • of faithfulness on my part, every year on our trip across the country

  • my wife has been seeing another man, a man with a van on the Indiana toll road.

  • This part is completely made up by the way.

  • Wouldn’t I have two different reasons for moral outrage?

  • One reason could be we had an agreement.

  • She broke her promise referring to the fact of her consent.

  • But I would also have a second ground for moral outrage having nothing to do

  • with the contract as such but I’ve been so faithful for my part.

  • Surely I deserve better than this.

  • Is this what I’m doing in return and so on?

  • So that would point to the element of reciprocity.

  • Each reason has an independent moral force.

  • That’s the general point and you can see this if you imagine

  • a slight variation on the marriage case.

  • Suppose we haven’t been married for 20 years.

  • Suppose we were just married and that the betrayal occurred

  • on the way to our honeymoon in Hammond, Indiana.

  • After the contract has been made, but before there is any history

  • of performance on my part, performance of the contract I mean,

  • I would still with Julian, I'd be able to say

  • but you promised, you promised.

  • That would isolate the pure element of consent,

  • right where there were no benefits, never mind. You get the idea.

  • Here’s the main idea, actual contracts have their moral force

  • in virtue of two distinguishable ideals: autonomy and reciprocity,

  • but in real life every actual contract may fall short, may fail to realize

  • the ideals that give contracts their moral force in the first place.

  • The ideal of autonomy may not be realized because there may be

  • a difference in the bargaining power of the parties.

  • The ideal of reciprocity may not be realized because there may be

  • a difference of knowledge between the parties and so they may misidentify

  • what really counts as having equivalent value.

  • Now suppose you were to imagine a contract where the ideals

  • of autonomy and of reciprocity were not subject to contingency

  • but were guaranteed to be realized, what kind of contract would that have to be?

  • Imagine a contract among parties who were equal in power and knowledge

  • rather than unequal who are identically situated rather than differently situated?

  • That is the idea behind Rawlsclaim that the way to think about justice

  • is from the standpoint of a hypothetical contract,

  • behind a veil of ignorance that creates the condition of equality by ruling out

  • or enabling us to forget for the moment the differences in power and knowledge

  • that could even in principle lead to unfair results.

  • This is why for Kant and for Rawls a hypothetical contract among equals

  • is the only way to think about principles of justice.

  • What will those principles be? That’s the question well turn to next time.

  • Don’t miss the chance to interact online with other viewers of Justice.

  • Join the conversation.

  • Take a pop quiz, watch lectures youve missed and learn a lot more.

  • This is at justiceharvard.org. It’s the right thing to do.

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